R D v A O DAVIES (Chair of the Special Educational Needs Disability Tribunal) and SURREY COUNTY COUNCIL
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 29 October 2003 |
| Neutral Citation | [2003] EWHC 2682 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3253/03 |
| Date | 29 October 2003 |
[2003] EWHC 2682 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Maurice Kay
CO/3253/03
MR BOWEN (instructed by Teacher Stern Selby) appeared at hearing on behalf of the CLAIMANT. MR WILLINS appeared for judgment
The 1st DEFENDANT did not attend and was not represented
MR SHARLAND (instructed by Surrey County Council) appeared at hearing on behalf of the 2nd DEFENDANT. MR WHALE appeared for judgment.
The claimant, to whom I shall refer as D, is the mother of a 14 year-old boy, S. He has learning difficulties. At all material times he has been the subject of a statement of special educational needs. Until the summer of 2002, he was attending West Hill School, a special school maintained by Surrey County Council as the Local Education Authority. In July 2002, D withdrew him following a recent deterioration in his behaviour. An annual review of S's statement had taken place in June 2002. Its conclusion was that the placement at West Hill School was appropriate to meet S's needs. However, D placed S at Ridgeway Community School and requested that that school be name in S's statement. The Local Education Authority accepted that Ridgeway was also appropriate. However, in view of transport costs, which exceeded those in respect of West Hill School by more than £20,000 per year, it refused to name Ridgeway in Part 4 of the statement because it was not compatible with the efficient use of resources. In an amended statement, dated 6th December 2002, it repeated West Hill School as the appropriate placement in Part 4 but manifested acquiescence in the parental preference for Ridgeway. Thereafter S attended Ridgeway at great expense to D, an expenditure which she is in no position to maintain on a permanent basis.
D appealed to a Special Educational Needs and Disability Tribunal, which heard the appeal on 6th June 2003. The outcome was that amendments were effected to Parts 2 and 3, but the appeal in relation to Part 4 was dismissed. Accordingly, there is now before this court a statutory appeal against that decision of the Tribunal.
The relevant statutory provisions are to be found in the Education Act 1996. Section 9 provides a general principle in these terms:
"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State [and] local education authorities … shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."
That principle also applies to the Tribunal. Statements of special educational need are dealt with in section 324, the material parts of which provide as follows:
"(1)If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.
(2)The statement shall be in such form and contain such information as may be prescribed …
(4)The statement shall-
(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement …"
The material provision of Schedule 27 is paragraph 3(3), which provides:
"Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless-
(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."
It is those last four words that are most relevant in the present case. I now turn to the three surviving grounds of appeal, a fourth ground having been abandoned.
Ground 1: the appropriateness of West Hill School
The relevant conclusions of the Tribunal on this central issue are set out in these passages:
"We noted the provision that is available for [S] at West Hill School and it appears that [S] would receive a differentiated curriculum in a small class with considerable support. We noted that [S] is neither the least able nor the most complex child in the group. He clearly had difficulties in social interaction at the school, in particular with one child who had bullied him and had involved other children. That child has now been permanently excluded. [D] had been concerned over the lack of progress of [S] at the school over a number of years. However, the annual review and the comments by his teachers had expressed satisfaction with the amount of progress that [S] had made. It is noted that test scores had revealed progress to be limited. These must be considered against [S's] overall level of ability.
"We had concerns and reservations regarding the practicality of [S] reentering West Hill School. Any form of reintegration plan needs to involve all the professionals and [D] and [S] himself. However, Mr Collett [who had presented the case on behalf of the Local Education Authority] was correct in arguing that the Tribunal has to consider only whether West Hill School could offer appropriate education for [S]. It was the choice of [S's] mother to remove [S] from the school. We shared the concerns with Mrs Nettleton [the head teacher at West Hill School] over [S's] attitude towards a re-entry to West Hill School but concluded that West Hill School should be able and could offer the appropriate provision necessary to meet [S's] needs, in particular with the additional provision of direct speech and language therapy and occupational therapy now ordered by the Tribunal. Although we concluded that West Hill School would be an appropriate school, in view of the possible practical difficulties it may well be that the parties could look at all other possibilities to help overcome the practical reintegration problems, including the possibility of a placement at Walton Leigh School. However, as we had concluded that West Hill School could offer appropriate provision, it would be an inefficient use of the LEA resources for the Ridgeway Community School to be the named school in Part 4 of the statement."
On behalf of D, Mr Bowen expresses this ground of appeal in the following terms:
"The Tribunal reached a finding of fact that West Hill School was suitable and appropriate but expressed very real concerns and reservations as to the practicality of reintegrating him. So serious were these concerns that they advised the LEA to consider an alternative placement at Walton Leigh School. As a question of rationality West Hill School could only be suitable if the Tribunal were satisfied on the evidence that it was possible to reintegrate [S] into it."
Mr Bowen draws attention to an earlier passage in the decision of the Tribunal, which states:
"Mrs Nettleton acknowledged that in order to successfully reintegrate [S], the school would need to work closely with [D]. She was not sure of [S's] reaction if he had to return to West Hill School. However, Mr Collett stated that the fact that [S] was at Ridgeway School was parental choice and the question for the Tribunal to decide was whether West Hill School could offer appropriate education for [S]."
Mr Bowen submits that a fair reading of the decision of the Tribunal shows that it had real concerns about whether reintegration was possible and therefore about whether West Hill School was suitable or appropriate, but then put those concerns to one side because D had created the problem by taking S away. He further submits that the Tribunal allowed itself to be misled into a legal misdirection by the advocacy of Mr Collett. Mr Bowen was particularly critical of the passage:
"Mr Collett was correct in arguing that the Tribunal has to consider only whether West Hill School could offer appropriate education for [S] because of the choice of [S's] mother to remove [S] from the school."
He describes this reasoning as erroneous because "it puts reintegration into a separate box from suitability". Although he vacillated on the conceptual basis of the complaint, it seems to me that it is either a Wednesbury point or nothing.
In that regard, I accept the submission of Mr Sharland about the correct approach for this court. In R v Kingston upon Thames Council and Hunter [1997] ELR 223 at 231 McCullough J said:
"Insofar as educational considerations arise in an appeal to this court the judge is a layman. Unlike the tribunal, one of whose lay members will have had knowledge and experience of children with special educational needs and the other knowledge and experience of local government, the...
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